Random Primer Pty Ltd v Ku-ring-gai Council

Case •

[2025] NSWLEC 1236

•

15 April 2025

No judgment structure available for this case.

Land and Environment Court


New South Wales

  • Amendment notes
Medium Neutral Citation: Random Primer Pty Ltd v Ku-ring-gai Council [2025] NSWLEC 1236
Hearing dates: 4-5 March 2025
Date of orders: 15 April 2025
Decision date: 15 April 2025
Jurisdiction:Class 1
Before: Gray C
Decision:

The Court orders that:

(1) The Court, exercising under s 39(2) of the Land and Environment Court Act 1979 the function of Ku-ring-gai Council as the relevant consent authority under s 38 of the Environmental Planning and Assessment Regulation 2021, approves the amendment to the development application DA0466/22 to include:

(a) The Acoustic Report prepared by Norrebro Design dated 30 May 2023;

(b) The BASIX certificate number 1785787M dated 3 March 2025;

(c) The Accessibility Report prepared by Morris Goding Access Consulting dated 5 February 2025; and

(d) The works described in points (1) and (2) of paragraph 6.7 of the Arboricultural Statement by Axiom Arbor dated February 2025.

(2) The parties provide agreed conditions of consent that reflect the findings of the Court by 24 April 2025.

(3) Exhibits A, B, 11 and 12 are retained, and the remaining exhibits are returned.

(4) The appeal is listed at 9.15am on 30 April 2025 for final disposal of the proceedings.

Catchwords:

APPEAL – development application – residential flat building – contentions resolved – appropriate conditions of consent – whether conditions should be imposed requiring creation of right of carriageway or restriction as to user

Legislation Cited:

Conveyancing Act 1919, s 88K

Environmental Planning and Assessment Act 1979, ss 4.15, 4.17, 8.7

Land and Environment Court Act 1979, ss 39, 40

Environmental Planning and Assessment Regulation 2021, ss 23, 27, 29, 38

Ku-ring-gai Local Environmental Plan 2013, cll 4.3, 4.4, 4.6, 6.5, 6.6

State Environmental Planning Policy (Housing) 2021, Sch 7A s 8, s 147

State Environmental Planning Policy (Resilience and Hazards) 2021, s 4.6

State Environmental Planning Policy (Sustainable Buildings) 2022, s 2.1

State Environmental Planning Policy (Transport and Infrastructure) 2021, ss 2.119 and 2.120

Cases Cited:

Lismore City Council v Dajoco Investments Pty Ltd [2021] NSWLEC 59

Owners Corporation Strata Plan 533 v Random Primer Pty Ltd [2025] NSWCA 8

Rainbowforce Pty Limited v Skyton Holdings Pty Limited and Ors (2010) 171 LGERA 286; [2010] NSWLEC 2

Random Primer Pty Ltd v The Owners Corporation Strata Plan 533 [2024] NSWSC 919

Texts Cited:

Ku-ring-gai Development Control Plan 2021

Category:Principal judgment
Parties: Random Primer Pty Ltd (Applicant)
Ku-ring-gai Council (Respondent)
Representation:

Counsel:
P Tomasetti SC with J Li (Applicant)
K Gerathy (Solicitor) (Respondent)

Solicitors:
CKSD Lawyers (Applicant)
HWL Ebsworth Lawyers (Respondent)
File Number(s): 2024/100039
Publication restriction: Nil

Judgment

  1. COMMISSIONER: At 186 Pacific Highway, Roseville, an irregularly shaped lot of land currently contains a dual occupancy with vehicular access by an easement for a right of way over its neighbour at 184 Pacific Highway. Random Primer Pty Ltd (Random) seeks development consent for the demolition of the existing structures and the construction of a residential flat building containing 8 dwellings. It lodged a development application on 9 November 2022, which was refused by Ku-ring-gai Council (the Council) on 18 September 2023. These proceedings are an appeal against that decision, pursuant to s 8.7 of the Environmental Planning and Assessment Act 1979 (EPA Act).

  2. The proposed development is for a three-storey residential flat building containing six 2-bedroom apartments and two 3-bedroom apartments. The ground floor will include a pedestrian footpath connecting the Pacific Highway to the ground level entry. Vehicular access is to be by the existing right of way over 184 Pacific Highway, and the development proposes the widening of the driveway for a length of 9m, starting at the Pacific Highway frontage and running for 9m into the site and the right of way. This widening is on the site, and will allow two vehicles to pass one another at the driveway entrance. One of the drawings that depicts the widening includes an indication that a right of way over the area of the widened driveway will be created in favour of the neighbour at 184 Pacific Highway. The proposed development also includes the demolition of a portion of existing sandstone edging and a stone wall that generally follows the boundary separating the right of way from the site.

  3. The number of issues raised by the Council concerning the proposed development have reduced in the course of the appeal proceedings, and the Council no longer raises any contention that it says would form the basis for a refusal of development consent. Nonetheless, I am required to carry out an assessment under s 4.15 of the EPA Act to determine if it is lawful and appropriate to grant consent. I am also required to consider the evidence and submissions of the objectors. Further, the parties remain in dispute concerning the appropriate conditions of development consent.

  4. For the reasons that are set out below, I have found that the development application is acceptable and that none of the concerns raised by the objectors warrant its refusal. The proposed development is of an acceptable density for the site, is appropriate in its context, and does not have an unacceptable impact. With respect to conditions, I have determined that a condition requiring a building information certificate is unnecessary, and that the conditions sought by the Council concerning the registration of an easement and a covenant are not reasonable in the circumstances.

The site and the locality

  1. The site is legally described as Lot 1 in Deposited Plan 501158, is irregular in shape and has a total area of 1164m2. It has a frontage of 5.31m to the Pacific Highway, a rear boundary width of 22.86m, a north-west side boundary length of 68.58m, and an irregular south-eastern side boundary. An aerial photograph of the site is at Figure 1.

  1. The site benefits from an easement for a right of way over 184 Pacific Highway, which is 4.57m wide and sealed with bitumen, running from the Pacific Highway alongside the building constructed on 184 Pacific Highway. The site also has the benefit of two easements for drainage that allow the discharge of water to Ontario Avenue to the south, through 184 Pacific Highway as well as Lot 9 in DP 7928. A stormwater pipe of 225mm diameter, and a pit, were constructed within the drainage easement burdening 184 Pacific Highway, without the benefit of development consent.

  2. Within the vicinity of the drainage easement burdening 184 Pacific Highway are a number of trees, shown at Figure 2. This includes a silky oak tree (T2) and privets (T3, T4, T5, T7 and T9).

  1. The immediate locality is characterised by two and three-storey residential flat buildings reflective of the high density residential zoning. The site is located at the boundary of the high density residential zone, with land zoned low density residential located immediately to the southwest, where Ontario Avenue and Bayswater Road is characterised by single dwelling houses.

  2. Adjoining the site to the south-east, at 184 Pacific Highway, is a two-storey residential flat building, which includes balconies oriented to the northwest overlooking the right of way and the subject site.

The planning framework

  1. The site is zoned R4 High Density Residential, pursuant to the Ku-ring-gai Local Environmental Plan 2013 (KLEP). The objectives of the zone are as follows:

• To provide for the housing needs of the community within a high density residential environment.

• To provide a variety of housing types within a high density residential environment.

• To enable other land uses that provide facilities or services to meet the day to day needs of residents.

• To provide for high density residential housing close to public transport, services and employment opportunities.

  1. The maximum floor space ratio (FSR) that applies to the site, pursuant to cl 4.4(2C) of the KLEP, is 0.8:1. The proposed development has a FSR of 0.69:1.

  2. Clause 4.3(2A) imposes a maximum development height standard for the development, which is 11.5m. The proposed development breaches the maximum height development standard, with a maximum height of 12.61m.

  3. Clause 6.6(2) of the KLEP also imposes development standards concerning the minimum area and dimensions required for a residential flat building. This requires, for this development, a minimum area of 1200m2 and a minimum dimension (width and depth) of at least 24m. The site does not comply with these standards.

  4. In order to grant development consent to the proposed development in circumstances where there is a breach of development standards, Random relies on cl 4.6 of the KLEP. The applicable wording of cl 4.6, as it applies to the development application, is as follows:

4.6   Exceptions to development standards

(1)  The objectives of this clause are as follows—

(a)  to provide an appropriate degree of flexibility in applying certain development standards to particular development,

(b)  to achieve better outcomes for and from development by allowing flexibility in particular circumstances.

(2)  Development consent may, subject to this clause, be granted for development even though the development would contravene a development standard imposed by this or any other environmental planning instrument. However, this clause does not apply to a development standard that is expressly excluded from the operation of this clause.

(3)  Development consent must not be granted for development that contravenes a development standard unless the consent authority has considered a written request from the applicant that seeks to justify the contravention of the development standard by demonstrating—

(a)  that compliance with the development standard is unreasonable or unnecessary in the circumstances of the case, and

(b)  that there are sufficient environmental planning grounds to justify contravening the development standard.

(4)  Development consent must not be granted for development that contravenes a development standard unless—

(a)  the consent authority is satisfied that—

(i)  the applicant’s written request has adequately addressed the matters required to be demonstrated by subclause (3), and

(ii)  the proposed development will be in the public interest because it is consistent with the objectives of the particular standard and the objectives for development within the zone in which the development is proposed to be carried out, and

(b)  the concurrence of the Planning Secretary has been obtained.

(5)  In deciding whether to grant concurrence, the Planning Secretary must consider—

(a)  whether contravention of the development standard raises any matter of significance for State or regional environmental planning, and

(b)  the public benefit of maintaining the development standard, and

(c)  any other matters required to be taken into consideration by the Planning Secretary before granting concurrence.

(6) …

  1. Clause 6.5 of the KLEP concerns stormwater and water sensitive urban design, and provides the following:

6.5 Stormwater and water sensitive urban design

(1) The objective of this clause is to avoid or minimise the adverse impacts of urban stormwater on the land on which development is to be carried out, adjoining properties, native bushland, waterways and groundwater systems.

(2) Before granting development consent to development on any land to which this Plan applies, the consent authority must be satisfied that—

(a) water sensitive urban design principles are incorporated into the design of the development, and

(b) riparian, stormwater and flooding measures are integrated, and

(c) the stormwater management system includes all reasonable management actions to avoid any adverse impacts on the land to which the development is to be carried out, adjoining properties, native bushland, waterways and groundwater systems, and

(d) if a potential adverse environmental impact cannot be feasibly avoided, the development minimises and mitigates the adverse impacts of stormwater runoff on adjoining properties, native bushland, waterways and groundwater systems.

(3) For the purposes of subclause (2)(a), the water sensitive urban design principles are—

(a) protection and enhancement of water quality, by improving the quality of stormwater runoff from urban catchments,

(b) minimisation of harmful impacts of urban development on water balance and on surface and groundwater flow regimes,

(c) integration of stormwater management systems into the landscape in a manner that provides multiple benefits, including water quality protection, stormwater retention and detention, public open space, and recreational and visual amenity,

(d) retention, where practical, of on-site stormwater for use as an alternative supply to mains water, groundwater or river water.

  1. The Ku-ring-gai Development Control Plan 2021 (KDCP) is also required to be considered, pursuant to s 4.15 of the EPA Act.

The application to amend the development application

  1. On the second day of the hearing, Random made an application for leave to amend the development application the subject of the proceedings. The application sought to remove, from plan DA 1.620, the reference to a creation of a right of way over the widened portion of the driveway. That application was opposed by the Council. I declined to grant the application, and indicated that I would provide more extensive reasons in the final written judgment. I provide those reasons now.

  2. The application for leave to amend the application was made on the basis that there was no way to compel the owner of 184 Pacific Highway to accept the proposed easement. Random therefore submits that it ought be permitted to remove the proposed creation of the right of way from its development application.

  3. The owner of 184 Pacific Highway is The Owners Corporation Strata Plan 533, who have been opposed to the creation of the proposed right of way and works within the existing right of way. The Owners Corporation Strata Plan 533 resisted the granting of owners’ consent to the making of the development application, leading Random to commence Supreme Court proceedings. In Random Primer Pty Ltd v The Owners Corporation Strata Plan 533 [2024] NSWSC 919, Williams J made orders compelling the grant of owners’ consent, and at [53] made the observation that:

“Counsel for the defendant submitted that the development application process would otherwise be “moot” because, ultimately, the defendant would not consent to the transfer of the easements for its benefit that are required to implement the proposed development.”

  1. At [55], Williams J also observed that “the defendant cannot be compelled to accept the transfer of new easements benefitting No. 184”.

  2. The Owners Corporation Strata Plan 533 appealed against the decision of Williams J, and the appeal was dismissed (see Owners Corporation Strata Plan 533 v Random Primer Pty Ltd [2025] NSWCA 8).

  3. The Council opposed the grant of leave, and submitted that the proposed amendment would be prejudicial to its position on the appeal. The Council says that it has proceeded for some time on the basis that the development application included the creation of the right of way, and as a result, reached a position that the vehicular access arrangements for the site were acceptable.

  4. As indicated on 5 March 2025, I consider that leave ought not be granted in circumstances where, to do so, would cause prejudice to the Council. Both the Statement of Facts and Contentions, and the Amended Statement of Facts and Contentions, contain a description of the development application, which includes the creation of the right of way over the widened portion of the driveway that is on the site. Given that the Council proceeded on the basis that this formed part of the development application, and therefore did not raise any contentions concerning vehicular movement or traffic, I accept the Council’s submission that it would be prejudicial to now allow it to be removed from the development application.

  5. Nevertheless, it is appropriate to allow Random to amend the development application to rely on the amended documents that were before the Court at the hearing and to incorporate the tree monitoring and remedial works. This was not opposed by the Council, and is reflected in order 1 below.

  6. There also remains a dispute as to whether a condition should be imposed requiring the creation of the easement for the right of way, which is considered below.

The expert evidence

Urban Design

  1. Expert opinion evidence on urban design issues was given in a joint report by Mr Lee Hughes, an architect engaged by Random, and Ms Kerry Hunter, an urban design consultant engaged by the Council. Their joint report was prepared on the basis of an earlier iteration of the development application.

  2. In their joint report, Mr Hughes and Ms Hunter agree that, if the development application was amended in accordance with the documents that now form part of the development application, the contentions concerning urban design would be resolved. As a result, the Amended Statement of Facts and Contentions filed on 19 February 2025, no longer contains any contentions concerning urban design, and the Council no longer raises any issues concerning the amenity of the future dwellings, the adequacy of the platinum level housing, the floor to floor heights, and the aesthetics, materials and maintenance of the proposed development.

Town planning

  1. Expert opinion evidence on the town planning issues was given in a joint expert report prepared by Mr Nick Juradowitch, a town planner engaged by Random, and Mr Luke Donovan, an officer of the Council. Their joint report was also prepared on the basis of an earlier iteration of the development application than that presently before the Court. Each of the matters that remained outstanding in their joint report, have now been resolved in the architectural plans, BASIX certificate and documents that now form part of the development application.

Engineering

  1. Expert opinion evidence on the stormwater management system was given by Mr Frank Zhou, a civil engineer engaged by Random, and Mr Guerrera, an engineer employed by the Council.

  2. Mr Zhou and Mr Guerrera agree that the 225mm diameter pipe that has been installed in the stormwater easement over 184 Pacific Highway, is sufficient to manage the stormwater runoff from the site. It is noted that this stormwater pipe was installed without development consent, but that the CCTV footage and the report of Hiflow Plumbing Solutions dated 13 November 2024 confirm that an investigation of the entire length of the pipe has been undertaken and the pipe is in good condition.

  3. Mr Zhou and Mr Guerrera therefore agree that the stormwater runoff captured from the proposed development site can be controlled without causing adverse impact to adjoining and downstream properties.

Arboricultural

  1. Due to the proximity of the newly laid pipe to existing trees, arboricultural evidence was given in a joint report prepared by Mr Louis Putnam Gray, an arborist engaged by Random, and Mr Geoff Bird, a landscape architect employed by the Council. An investigation undertaken by Mr Gray revealed that the installation of the pipe resulted in major incursions into the tree protection zones for T2, T3, T4, T5, T6, T7 and T9. However, they agree that there is only one tree of concern, T2, in relation to which one of the roots has been severed.

  2. Mr Gray and Mr Bird agree on remedial works within the tree protection zone for the silky oak tree (T2), and to the installation of tree motion tilt sensors on T2 to determine whether tree structural integrity has been compromised by the installation of the pipe. As set out above, Random has amended its development application to include those works. Those works are also incorporated in the conditions of consent.

The resident objector evidence

  1. The development application was notified for 30 days commencing on 29 November 2022, and was notified again for a period of 14 days commencing 20 June 2023 following its amendment. Following a further amendment of the development application in the course of the appeal proceedings (following the joint reports referred to above), the Council again chose to notify the development application for a period of 14 days from 17 February 2025. Written submissions were received in response to each period of notification. At the commencement of the hearing, a number of residents attended to make oral submissions on the proposed development. The issues raised in both the written and oral submissions can be summarised as follows:

  • Traffic impacts concerning access from the Pacific Highway;

  • Concerns about the use of the right of way, including maintenance and conflicts between users;

  • Inadequacy of the proposed car parking and potential to use neighbouring visitor parking;

  • Excessive built form, height and bulk;

  • Non-compliant building setbacks;

  • Privacy impacts;

  • Solar and view impacts;

  • Stormwater and sewage runoff impacts; and

  • Acoustic impacts.

  1. For the reasons that are set out below, none of the matters raised in these written or oral submissions warrant refusal of the development application. The proposed development provides an improvement to the access from Pacific Highway, which improves the safety for future residents of the development and existing residents at 184 Pacific Highway. The built form is acceptable as proposed, and does not cause any unacceptable overshadowing, loss of privacy or view loss.

The satisfaction required by cl 6.5

  1. In its Amended Statement of Facts and Contentions, the Council raised a contention that the Court could not be satisfied of the matters in cl 6.5(2) of the KLEP. Clause 6.5 is reproduced in full, above at [15].

  2. The Council’s position is that, in circumstances where the development application includes the prospective use of the pipes and their maintenance in the future, and the past installation of them caused damage to trees, the Court could not be satisfied that “the stormwater management system includes all reasonable management actions to avoid any adverse impacts…” as required by cl 6.5(2)(c). Similarly, on the same basis, the Council’s position is that the Court could not be satisfied that “the development minimises and mitigates the adverse impacts of stormwater runoff…”, as required by cl 6.5(2)(d). For those reasons, the Council’s position is that, absent any works to manage the damage to T2 and protect it into the future, the Court could not be satisfied of these jurisdictional preconditions to the grant of development consent. As such a precondition cannot be met by the imposition of a condition, the Council says that, to achieve the satisfaction required by cl 6.5(2), the works to manage the damage to T2 and to monitor T2 must be incorporated in the development application itself.

  3. Random agrees to making an amendment to the development application to include the remediation works around T2 and the tree monitoring. As a result of those amendments, the Council now accepts that the Court can be satisfied of the matters in cl 6.5(2). Therefore, this contention concerning the satisfaction required by cl 6.5 of the KLEP is no longer in issue.

  4. However, contrary to the Council’s position on the construction of cl 6.5, I consider that the satisfaction required by cl 6.5(2)(c) and (d) concerns the impacts of stormwater runoff, rather than impacts arising from the installation and maintenance of pipes themselves. The “management actions” referred to in (c) relate to the “stormwater management system”, and concerns how stormwater is managed. This is consistent with (d), which specifically relates to minimising and mitigating the adverse impacts of “stormwater runoff” in circumstances where a potential adverse impact cannot be avoided. Whilst the impact of a proposed development, including the impacts of installation and maintenance of pipes that form part of a stormwater management system, is relevant to the assessment under s 4.15(1)(b) of the EPA Act, cl 6.5(2)(c) and (d) of the KLEP are concerned with the specific impacts of stormwater runoff. This is consistent with the objective of the clause, which is to “avoid or minimise the adverse impacts of urban stormwater”.

  5. Therefore, I accept the submission made by Random that the overall drainage proposal, as set out in the civil engineering drawings and supporting materials, satisfies cl 6.5 of the KLEP. These materials include the civil engineering drawing set (Ex B, pp 40-49), the certificate of compliance for the pipe work dated 20 January 2025 (Ex B, p 54), the report of Hiflow Plumbing Solutions dated 13 November 2024 and the updated Stormwater Certificate dated 28 February 2025 (Ex A). This is also supported by the evidence of the engineers, Mr Zhou and Mr Guerrera, that the stormwater runoff captured from the proposed development site can be controlled without causing adverse impacts to adjoining and downstream properties.

  6. Based on the evidence of the engineers, and the civil engineering drawings and materials referred to above, I am satisfied that the stormwater management system “includes all reasonable management actions to avoid any adverse impacts on the land to which the development is to be carried out, adjoining properties, native bushland, waterways and groundwater systems”, consistent with cl 6.5(2)(c), and that there will be no adverse impacts of stormwater runoff, consistent with cl 6.5(2)(d).

  7. I am therefore satisfied of the matters in cl 6.5(2) of the KLEP, albeit for different reasons to those advanced by the Council.

The breach of the development standards

  1. As set out above, the proposed development does not comply with the development standards in the KLEP for height (cl 4.3(2A)) or minimum area and dimensions (cl 6.6(2)). In order to grant development consent, cl 4.6 of the KLEP must be complied with, and I must be satisfied of the matters in cl 4.6(4)(a), which is reproduced above at [14]. Random has provided a written request in respect of each of the standards, consistent with cl 4.6(3) of the KLEP. The Council agrees that each of the written requests adequately establish the matters required to be demonstrated by cl 4.6(3), and that development consent can be granted notwithstanding the contravention of the development standards.

  2. For the reasons set out below, I am satisfied of the matters in cl 4.6(4)(a), and that there is power to grant development consent notwithstanding the breach of the development standards.

The height development standard

  1. Clause 4.3(2A) imposes a maximum development height standard for the development, which is 11.5m. The proposed development breaches the maximum height development standard, with a maximum height of 12.61m, which is 10% or 1110mm above the standard. The encroachment above the maximum height is confined to a small portion of the top floor, which comprises the living room and bedroom of the rear top floor unit, where portions of these rooms are located above the existing excavated car parking level. The area that exceeds the height development standard is also recessed so that it is not discernible from the public domain. Figure 3 shows the extent of the height exceedance.

  1. I am satisfied that the written request dated February 2025, lodged pursuant to cl 4.6 of the KLEP, adequately establishes sufficient environmental planning grounds that justify the breach in the height development standard by demonstrating that the breach arises from a change in level on the site caused by historical excavation to provide for a lower-level parking area aligned with the existing access driveway, and the breach allows the design to be responsive to the topography of the site. I am also satisfied that the written request demonstrates that compliance with the standard is unreasonable and unnecessary given that the proposal is consistent with the objectives for the height development standard. Further, I am satisfied, based on the content of the written request, that the proposal is in the public interest because it is consistent with the objectives of the zone and of the standard.

  2. Whilst cl 4.6(4)(b) also requires the concurrence of the Planning Secretary, s 39(6) of the Land and Environment Court Act 1979 gives the Court the power to grant development consent without obtaining the concurrence of the Secretary.

  3. For those reasons, I am satisfied that, consistent with the requirements of cl 4.6(4), there is power to grant development consent notwithstanding the breach of the height development standard.

The minimum area and dimensions standard

  1. Clause 6.6(2) of the KLEP imposes development standards concerning the minimum area and dimensions required for a residential flat building. This requires, for this development, a minimum area of 1200m2 and a minimum dimension (width and depth) of at least 24m. The site does not comply with these standards, and instead has an area of 1164m2, and a width of 5.31m at the front boundary and 22.86m at the rear boundary.

  2. The written request, dated February 2025, outlines that an amalgamation with adjoining land has not been possible to achieve the minimum area and dimensions required by cl 6.6(2).

  3. I am satisfied that the written request adequately establishes sufficient environmental planning grounds that justify the breach by outlining that the breach enables a residential flat building to be developed on the site, which is more compatible with the existing and intended character of the area than a lower density development which does not attract the minimum lot size and dimensions standard.

  4. I am also satisfied that the written request demonstrates that compliance with the standard is unreasonable and unnecessary given that the proposal is consistent with the objectives, and also given the negligible departure from the minimum lot size aspect of the standard. Further, I am satisfied, based on the content of the written request, that the proposal is in the public interest because it is consistent with the objectives of the zone and of the standard.

  5. As set out above, the concurrence of the Planning Secretary is not required. As such, I am satisfied that, pursuant to cl 4.6(4) of the KLEP, there is power to grant development consent notwithstanding the breach of the development standard for lot size and dimensions that applies pursuant to cl 6.6(2).

Each of the contentions raised by the Council has been resolved

  1. As a result of the amendments made to the development application and the expert evidence, each of the contentions raised by the Council in the Amended Statement of Facts and Contentions have been resolved.

Owners’ consent

  1. The Council raised a contention that the development application was not accompanied by the written consent of the owners of the neighbouring property at 184 Pacific Highway, at which works were proposed on the right of way. As stated above, the owner of 184 Pacific Highway is The Owners Corporation Strata Plan 533. Section 23(1)(b) of the Environmental Planning and Assessment Regulation 2021 (EPA Regulation 2021) requires that, where a development application is not made by the owner of the land, the development application must be made with the written consent of the owner of the land.

  2. To obtain owners’ consent, Random pursued proceedings in the Supreme Court of NSW. In Random Primer Pty Ltd v The Owners Corporation Strata Plan 533, the Supreme Court made orders that The Owners Corporation SP533 provide its written consent to the making of the development application. As stated above, an appeal against that decision was unsuccessful: Owners Corporation Strata Plan 533 v Random Primer Pty Ltd.

  3. On 21 February 2025, the Owners Corporation Strata Plan 533 provided a letter dated 20 February containing its written consent to the making of the development application. The letter bears the seal of the Owners Strata Plan 533 and the signature of the secretary and a committee member.

  4. As such, the written consent of the Owners Corporation Strata Plan 533 has been provided, and s 23(1) of the EPA Regulation is satisfied. This contention is now resolved.

Adequacy of the stormwater design

  1. Contentions 2, 3, 12 and 14 of the Amended Statement of Facts and Contentions raised concerns with respect to the adequacy of the stormwater design and its reliance on the stormwater pipes that were installed without development consent. The Council contended that work as-executed plans had not been provided, and there was no engineers certification or information on the methodology used.

  2. However, a work as-executed plan has now been provided, together with an engineer’s certification and a report demonstrating that the pipe and pit are in good condition. As such, Mr Zhou and Mr Guerrera agree that the stormwater design is adequate.

  3. For those reasons, none of the matters raised in these contentions concerning the stormwater design warrant refusal of the development application. Contention 12 also raises a requirement concerning a building information certificate, which is considered further below.

Impact on trees

  1. Contention 3, at (c) to (f), also raised an issue concerning the impacts on the trees from the installation of the pipes and pits. However, as set out above at [32] to [33], Mr Gray and Mr Bird agree that there is only one tree of concern, and they have agreed on remedial works and on a tree monitoring programme. As those works and the monitoring now form part of the development application, these issues concerning the impact on the trees are adequately dealt with and do not warrant refusal of the development application.

BASIX certificate issues

  1. In its Amended Statement of Facts and Contentions, the Council also raised a contention concerning the adequacy of the BASIX certificate (contention 10). In particular, the BASIX certificate provided had not included one of the connections to a central water tank, and therefore its predicted water usage was not accurate.

  2. However, Random has now provided an updated BASIX certificate dated 3 March 2025, which addresses this issue and the Council agrees that this contention is now resolved.

Issues raised by the residents

  1. A number of issues were raised by local residents concerning the proposed development, which are summarised above at [34].

Vehicle and pedestrian safety

  1. The development application is supported by a traffic report dated 31 January 2025, which confirms that the proposed development will generate 2 vehicle trips per hour and that the trip generation would have no impact on the operation of the Pacific Highway or the right of way.

  2. The widening of the driveway near the entrance will allow for the two-way passing of vehicles, in compliance with AS 2890.1, and vehicles will be able to enter and exit the carpark in a forward direction. Further, there is no risk to pedestrian safety of users of the proposed development, as a separate pedestrian pathway is proposed.

  3. Further, the traffic report confirms that the proposed development provides the number of car parking spaces required under the relevant planning instruments.

  4. Accordingly, there are no issues concerning vehicle and pedestrian safety that would warrant refusal of the development application.

Privacy impacts

  1. As set out in the Council’s assessment report concerning the development application (Ex 3, Tab 21), the proposed windows and balconies on the south-eastern elevation have been designed to minimise privacy impacts to the residents of 184 Pacific Highway. Further, the proposed building is set back between 12.3m and 16m from the rear boundary adjoining 17 Ontario Avenue, with substantial landscaping along the rear boundary, which will provide sufficient privacy to 17 Ontario Avenue. As such, there will only be oblique views to the rear yard of 17 Ontario Avenue, which is typical of a residential area.

  2. With respect to the acoustic impact of the proposed development, the Council’s assessment report makes it clear that any redevelopment of the site for greater density will result in additional noise impacts, but the extent of additional noise is not unreasonable and is anticipated for the site in the context of its zoning for R4 High Density Residential development.

  3. As such, the proposed development will not result in any unreasonable overlooking, visual privacy or acoustic privacy impacts.

Bulk, scale and setbacks

  1. Based on the Council’s assessment report (Ex 3, Tab 21) and the Statement of Environmental Effects dated May 2023 (SEE), I am satisfied that the proposed development is designed to respond to the constraints of the site and is of appropriate bulk and scale.

  2. As set out in the SEE, the built form adopts a narrow form and is sited in the wider central portion of the site, with compliant front and rear setbacks that are much greater than that required by the KDCP. This optimises the space available for landscaping.

  3. Due to the narrowness of the site and the proximity of the existing adjacent residential flat buildings, the side setbacks do not achieve building separation anticipated by the Apartment Design Guide (ADG), or the distance sought by the KDCP. Nevertheless, there is adequate separation to allow for natural light and ventilation. Where there are reduced side setbacks, the design includes highlight windows and other privacy treatments.

  4. The proposed floor space ratio (FSR) is 0.69:1, which is less than the maximum permitted floor space ratio of 0.8:1. The proposed development therefore does not attempt to maximise the gross floor area to be built on the site, and instead proposes a volume of built form that is appropriate in the context of a constrained site.

  5. For those reasons, the bulk, scale and setbacks of the proposed development are acceptable.

Solar access impacts

  1. Whilst the proposed development will result in additional overshadowing of the residential flat building at 184 Pacific Highway from around 11am, the living rooms and balconies of 184 Pacific Highway will receive 2 hours of sunlight between 9am and 3pm on 21 June, with most apartments continuing to receive more than 3 hours of sunlight between 9am and 3pm. This is consistent with what is required by the ADG. As such, the loss of solar access is not a basis upon which to refuse the development application.

View impacts

  1. The view impacts were considered by the Council in its assessment report (Ex 3, Tab 21), which acknowledged the pleasant outlook to the distant Lane Cove National Park, Blue Mountains and Macquarie Park cityscape enjoyed by apartments oriented to the west at 184 Pacific Highway. These views are across the side boundary of the subject site, and the report considers this as a matter of ‘borrowed amenity’.

  2. The report points out that, in circumstances where a 3-storey building form is anticipated on the site by the development controls, the views enjoyed by residents over the side boundary are as a result of the underdevelopment of the subject site. In such circumstances, the report concludes that insisting on the retention of the existing borrowed amenity would preclude the development of the site, which is not appropriate giving its zoning for R4 High Density Residential and the desired future character under the KLEP and the KDCP.

  3. I accept the Council’s assessment of this issue, and consider that any loss of views resulting from the proposed development does not warrant its refusal.

Development consent should be granted

  1. For the above reasons, none of the issues raised by the objectors or by the Council in its Amended Statement of Facts and Contentions warrant refusal of the development application. The proposed development provides high density residential accommodation consistent with the existing context and the desired character of the area, in an appropriate bulk and scale for the constrained nature of the site. It provides adequate landscaping and appropriate vehicular access using the right of way, with a widened portion on the site to allow for vehicles to wait in the driveway when another vehicle enters the driveway.

  1. In addition, I am satisfied that the following preconditions to the exercise of the Court’s power to grant development consent have been satisfied:

  • Consistent with the requirements of s 27 of the EPA Regulation 2021, the development application is accompanied by the BASIX certificate dated 3 March 2025. Based on the BASIX certificate, I am satisfied of the requirement in s 2.1(5) of the State Environmental Planning Policy (Sustainable Buildings) 2022.

  • The development application is accompanied by a statement of a qualified designer, dated 29 January 2025 (the Design Statement) that verifies the design of the development, as required by s 29 of the EPA Regulation 2021.

  • Chapter 4 of the State Environmental Planning Policy (Housing) 2021 (SEPP Housing) applies to the proposed development, pursuant to s 8(2A) of Sch 7A. Based on the Design Statement, I have considered the matters required to be considered by s 147(1) of the SEPP Housing.

  • Consideration has been given as to whether the subject site is contaminated as required by s 4.6 of the State Environmental Planning Policy (Resilience and Hazards) 2021. As the site has a history of use for the purposes of residential premises (in the form of a dual occupancy), it is unlikely to be contaminated.

  • The site has frontage to the Pacific Highway, which is a classified road, and ss 2.119 and 2.120 of State Environmental Planning Policy (Transport and Infrastructure) 2021 (SEPP T&I) apply. In accordance with s 2.119, it is not practicable to provide vehicular access by a road other than a classified road, but, based on the Transport Assessment dated 31 January 2025, I am satisfied that the safety, efficiency, and ongoing operation of the classified road will not be adversely affected by the development as a result of the vehicular access or the emissions from the development. Consistent with the requirements of ss 2.119(2)(c) and 2.120(3), the proposed development has been designed to prevent or reduce the impacts associated with road traffic noise and will be carried out in accordance with the recommendations in the Acoustic Report dated 30 May 2023 that will ensure a suitable degree of amenity for residents and other occupants of the proposed development, including compliance with the LAeq levels in s 2.120(3).

  1. Development consent should therefore be granted, subject to appropriate conditions of consent.

The conditions of consent

  1. There are three areas of disagreement between the parties in relation to the conditions of development consent. The first concerns a condition requiring the creation of an easement for a right of way over the expanded portion of the driveway on the site, and the second concerns a positive covenant concerning works around T2. In relation to both, I have determined that operative conditions should be in place, but that no instrument should be required to be registered, for the reasons set out below. The third concerns whether a building information certificate should be required by a condition of development consent.

The easement condition

  1. As set out above, the proposed development includes a new a right of way over the site in the area of the widened driveway, in favour of 184 Pacific Highway. It is expressed on Plan DA 1.620 (Rev D), in the driveway cross section, as “New ROW in favour of 184 Pac Hwy”.

  2. To put this into effect, the Council seeks to impose a condition requiring the creation of an easement for the right of way. The condition is required to be met prior to the issue of an occupation certificate. It provides:

“Right of Carriageway over the widened driveway/passing bay

Prior to the issue of the Occupation Certificate, the Principal Certifier is to be provided with evidence of the creation of an easement under the Conveyancing Act 1919, Right of Way burdening Lot 1 in DP 501158 (186 Pacific Highway) and demonstrating that Lot 1 and Lot 2 in DP 501158 (184 Pacific Highway) is benefited by the necessary right of carriage way over the passing bay that is located on the north-western side of the existing right of carriageway that burdens Lot 2 in DP 501158 and benefits Lot 1 in DP 501158. The passing bay is for the 1st 9metres as indicated on the plans forming part of Condition 1 of this consent and in particular the hatched area shown in 2018 DA 1.620 Rev D dated 16.1.25 and the driveway cross-section on 2018 DA 1.101 Rev Z dated 16.1.25 .

The Instrument and evidence of registration at the ROC must be submitted electronically to Council.

The authority empowered to modify, vary or release the restriction on use of land is Ku-ring-gai Council.

The terms of the instrument are to be to the satisfaction of Council.

Reason: To ensure that Lot 2 in DP 501158 (184 Pacific Highway) is legally able to benefit from use of the widened driveway passing bay that is located alongside the existing right of carriageway.”

  1. The condition is opposed by Random. Random instead proposes two alternate, alternative operational conditions that will give effect to the right of way without the requirement for an easement. Those alternate conditions are:

“Use Of Widened Driveway

The owner of Lot 1 on Deposited Plan 501158 shall make available the land shown hatched on plan DA 1.620 (Rev D) for use by the owners of the lots in SP533 their guests and invitees, for pedestrian and vehicle access to and from the Pacific Highway, Roseville, to the land in Lot 2 on Deposited Plan 501158 (being the land located on 184 Pacific Highway, Roseville) for the life of this consent.”

Or

“Use of Widened Driveway/Passing Bay

The owner of Lot 1 in Deposited Plan 501158 must permanently make available the land shown hatched (Widened Driveway) on plan DA 1.620 (Rev D) for use, at all times, by the owners and occupants of the lots in SP533 and any person who is entitled to an estate or interest in possession in the land being Lot 2 in Deposited Plan 501158 (184 Pacific Highway, Roseville), their agents, guests and invitees (Benefited Persons), for pedestrian and vehicle access (including but not limited to delivery trucks), providing full and free rights to go, pass and repass at all times with or without animals or vehicles or both to and from the Pacific Highway, Roseville, to the land in Lot 2 in Deposited Plan 501158 (being the land located on 184 Pacific Highway, Roseville) for the life of this consent. At no times, shall the Widened Driveway be used for either the standing or parking of vehicles or contain any temporary or permanent obstructions which would hinder or impede the full and free right of the Benefited Persons to go, pass and repass at all times with or without animals or vehicles or both. The Widened Driveway must be maintained in a safe and roadworthy condition (free from potholes and the like) for the life of the consent. All cost/s associated with maintaining the Widened Driveway in s safe and roadworthy condition must be borne by the owners of No. 186 Pacific Highway, Roseville.”

  1. The reason why Random opposes a condition requiring the registration of the easement is because it cannot compel the owner of 184 Pacific Highway, the Owners Corporation Strata Plan 533, to agree to an easement that is in their favour and for which they would be the dominant tenement. Random points to the resistance of the Owners Corporation Strata Plan 533 to grant owners consent, as well as to what is recorded in the decision of Williams J in Random Primer Pty Ltd v The Owners Corporation Strata Plan 533 at [53], where it was made clear to the Supreme Court by counsel that “ultimately, the defendant would not consent to the transfer of the easements for its benefit that are required to implement the proposed development.”

  2. Random submits that the Court should be reluctant to impose conditions of consent that will be unable to be met by an applicant. Random says that it is not for the landowners at 184 Pacific Highway to control whether the land can be used for a development that reflects the desired future character for land in the zone. Random submits that one of its proposed conditions will achieve the same practical result as the Council’s condition, which will give the neighbours an enduring and enforceable right to use the widened driveway. Random acknowledges that this is not a registered proprietary interest, but the right will nonetheless pass in situ and operate in rem.

  3. The Council instead submits that it is appropriate to impose the condition given that the development application always included the creation of the right of carriageway. The Council says that the manner in which the proposed right of way should be effected is through the creation of a proprietary right by way of easement, which reflects an accepted statutory regime for the reciprocal use of land for vehicular access through reciprocal easements. The Council submits that it is not open to the Court to adopt one of Random’s alternative conditions, as it doesn’t create the proprietary right to pass and repass.

  4. Further, the Council says that the concerns that Random has in relation to the withholding of consent may not come to pass with respect to the creation of the easement. Although the Owners Corporation Strata Plan 533 held a position, in the Supreme Court proceedings, that consent for the creation of an easement would be withheld, the Council says that it may have changed its position given that events have moved on. In support of this proposition, the Council provided, by e-mail following the conclusion of the hearing, a record of what Ms Gerathy understood to be the position of the Owners Corporation Strata Plan 533, which includes a statement that (inter alia) “they are not outright refusing to sign documents to give effect to the creation the ROW. Rather, they wish to see its terms and have an open discussion with [the applicant] about the terms…”.

The easement condition ought not be imposed

  1. It is axiomatic that the use of the widened driveway by occupants of both 184 and 186 Pacific Highway will increase the safety of vehicles using the existing driveway. The widened driveway allows vehicles to wait in the driveway until it is safe to leave the driveway, whilst simultaneously allowing vehicles entering the driveway to pass. Williams J made the following comments regarding this arrangement in Random Primer Pty Ltd v The Owners Corporation Strata Plan 533 at [13]:

“I infer that the Council assessed a “reciprocal” right of way as necessary because, as the defendant submitted, it is implicit in the inclusion of the passing bay in the most recent iterations of the plans that traffic on the driveway will be managed in a way that requires drivers of vehicles exiting No. 184 or No. 186 to the Pacific Highway to cross over the boundary onto No. 186 into the passing bay, from which position they will turn onto the Pacific Highway.”

  1. Whilst the best outcome is for this arrangement to be effected through the registration of an easement in favour of 184 Pacific Highway over the widened driveway, in the circumstances of the proceedings I consider that it would be unreasonable to impose a condition of development consent requiring the same before the issue of an occupation certificate. I reach this conclusion for the reasons that follow.

  2. Firstly, on the evidence, a condition requiring the registration of the easement may not be capable of being complied with, for the reasons given by Random. The Owners Corporation Strata Plan 533 withheld its consent to the making of the development application, which the Supreme Court and the Court of Appeal both held infringed Random’s rights under the easement (Random Primer Pty Ltd v The Owners Corporation Strata Plan 533 at [82]; Owners Corporation Strata Plan 533 v Random Primer Pty Ltd at [52]).

  3. If consent for the registration of an easement is withheld, there is not necessarily a clear avenue available to Random to compel the Owners Corporation Strata Plan 533 to agree to the creation of an easement for its benefit. Section 40 of the Land and Environment Court Act 1979 may be available, but is typically utilised by the landowner who would be benefitted by the easement, and an order can only be made if the easement is “reasonably necessary for the effective use or development of other land that will have the benefit of the easement” (Conveyancing Act 1919, s 88K(1)) (see Rainbowforce Pty Limited v Skyton Holdings Pty Limited and Ors (2010) 171 LGERA 286; [2010] NSWLEC 2 at [70] to [74]).

  4. Even if I could have regard to the email provided by Ms Gerathy after the closing of evidence, it offers little comfort that consent to the transfer of an easement will be forthcoming. The reference to the Owners Corporation Strata Plan 533 wishing to “see its terms and have an open discussion… about the terms”, is no guarantee that terms required by the Owners Corporation Strata Plan 533 will be reasonable, and the requirement for unreasonable terms could amount to a constructive refusal to give consent.

  5. The consequence of Random not being able to comply with the Council’s proposed condition is that, having built the development, it will not be able to have it occupied or the dwellings sold. It will remain unoccupied for as long as the Owners Corporation Strata Plan 533 withholds its consent, or its consent on reasonable terms, to the registration of an easement in its favour. This could prevent the occupation of the building for an indefinite period. It is not reasonable to keep a building vacant for an indefinite period of time for the sake of an easement that benefits adjacent landholders.

  6. Secondly, the easement is not required for the users of the proposed development to lawfully enter and exit their building. Residents of the proposed development at 186 Pacific Highway will use the existing right of way over 184 Pacific Highway to enter and exit the residential flat building, and may traverse onto the widened portion of the driveway which is on their land. It is unreasonable to delay or prevent the occupation of a constructed building because of a requirement to register an easement that is not actually necessary for vehicular access for residents of the proposed development.

  7. Thirdly, either of the two alternative conditions proffered by Random are sufficient to ensure that Random makes available the area of the expanded driveway for the use of residents of 184 Pacific Highway, so as to avoid conflicts between vehicles entering and exit the driveway. This is adequate to deal with any issues concerning the impact of additional vehicles using the driveway as a result of the proposed development. The preferred condition is for it to be in the terms of the second, more detailed operational condition.

  8. If the owner of 184 Pacific Highway, the Owners Corporation Strata Plan 533, wishes to obtain an easement over the expanded area of the driveway on the site so as to ensure that there is a proprietary interest in the land and avoid a trespass in law, that is a matter for them to pursue. As set out in Owners Corporation Strata Plan 533 v Random Primer Pty Ltd, they capable of continuing to use their own land without a trespass onto 186 Pacific Highway, if that is what they wish to do. As stated at [50]:

“There is no apparent reason why a resident of Lot 2 [No 184] could not lawfully drive down the middle of the proposed extended driveway, staying only on Lot 2. Nor is there any reason why they could not adopt the current practice, described by Mr Pavlovic, of stopping and reversing if they see a car entering the driveway from the highway. Of course, to drive down the middle would not be as convenient or safe as driving sensibly on the left, lest a vehicle wish to enter the driveway from the Pacific Highway. And it is possible that were a collision to occur then such a driver might be held to have breached a duty of care in not having chosen the safer path. Nevertheless, it was not established that such a driver would breach any law by taking such a course, nor that the proposed DA would prevent it.”

  1. Nevertheless, the operational condition of consent operates in rem and compels the developer and owner of 186 Pacific Highway to make the expanded area available for use by residents of 184 Pacific Highway, and can be enforced in using the mechanisms available (including open standing provisions) in the EPA Act.

  2. If the owner of 184 Pacific Highway instead seeks to obtain a proprietary right to use the expanded area of the driveway, through the creation of an easement for a right of way, the absence of a condition of development consent requiring the easement does not prevent the two landowners from negotiating appropriate terms and agreeing on the creation of an easement.

  3. Further, the reference to a new right of way on the plans that form part of the development application does not compel the consent authority, or the Court on appeal, to impose a condition requiring the registration of an easement. Section 4.17(1)(g) allows a condition of development consent to be imposed that modifies details of the development the subject of the development application.

  4. For those reasons, I do not consider it reasonable to impose the condition advanced by the Council requiring the creation of an easement prior to an occupation certificate, and I instead consider that the more detailed alternative condition proffered by Random is adequate to ensure that the area of the expanded driveway will be available for use by those occupying 184 Pacific Highway.

The maintenance works condition

  1. The Council seeks a condition of consent requiring that, prior to the issue of an occupation certificate, a covenant and restriction be placed on the title so as to specify the manner in which maintenance of the stormwater system in the drainage easement is to be carried out. The condition is as follows:

“Registration of Restrictive Covenant to control the method of maintenance of the stormwater management system in the Drainage Easement

Prior to the issue of an occupation certificate or lawful commencement of use of the site, whichever occurs first, an Instrument pursuant to Section 88E of the Conveyancing Act 1919 and one copy must be submitted to Council in registrable form, providing for:

(a) A covenant and restriction as to use in favour of Ku-ring-gai Council burdening the site, requiring that:

i. Any maintenance works or the stormwater management system in the Drainage Easement within the Tree Protection Zone of Tree 2 (Silky Oak) is to be under the supervision of a AQF 5 Arborist;

ii. There is to be no heavy duty machinery used within that part of the Drainage Easement that is also located within the Tree Protection Zone of Tree 2 (Silky Oak). All maintenance works must be undertaken in accordance with AS4970-2009;

iii. Ku-ring-gai Council being nominated in the Instrument as the only party authorised to release, vary or modify the Instrument.

The terms of the Instrument must be executed by an authorised delegate of Ku-ring-gai Council prior to submission to the NSW Land Registry Services for registration.

The Instrument creating the restriction and covenant under s88E required by this condition of consent must be registered on the Title of the development site prior to the issue of an Occupation Certificate or commencement of use of the site, whichever is earlier.

All costs associated with the preparation, approval and registration of the Instrument required by this condition of consent must be borne by the person acting on this consent including the reasonable costs of Council in obtaining advice, negotiating the terms or otherwise facilitating the execution and registration of the required Instrument.

Evidence of the registration of the Instrument referred to in this condition is to be provided to Council prior to the issue of an Occupation Certificate.

Reason: To ensure use of the stormwater management system, including the inspection, monitoring and maintenance of the 225mm pipe constructed within the easement bordering 184 Pacific Highway does not adversely impact trees, in particular Tree 2 and that any impacts arising from use of the stormwater management system are minimised and mitigated.”

  1. The Council says that this condition is no different from the condition requiring the registration of a positive covenant concerning the on-site stormwater detention (OSD) facilities. Random opposes the imposition of this condition, and submits that there is no provision of the KDCP that supports the requirement for an instrument to be registered on title. Random also points out that an instrument on title is not an appropriate mechanism for the enforcement of conditions of consent.

  2. I am not persuaded that the registration of an instrument on title is appropriate for regulating the way in which the maintenance of the stormwater pipe and pit within the drainage easement is to occur. These matters are appropriately dealt with through operational conditions of consent, and not by a restriction on the title to the land benefitting from the stormwater easement. As submitted by Random, this proposed condition is distinct from that concerning the OSD, as the latter is required by the KDCP (see KDCP Part 24R.1.19).

  3. There ought instead be operational conditions in terms of (a)(i) and (ii) above. This will be required to be prepared by the parties in compliance with a direction below for them to provide amended conditions of consent.

The building information certificate condition

  1. The Council seeks the imposition of a condition of consent that requires a Building Information Certificate for the pipe constructed within the easement to the rear of 184 Pacific Highway. The condition is required to be satisfied prior to the issue of an occupation certificate, and is as follows:

“Building Information Certificate

A Building Information Certificate (BIC) application is required to be lodged with Council, and a BIC obtained, to regularise the following works –

1. The newly constructed 225mm diameter pipe (the Pipe) within the existing easement at the rear of 184 Pacific Highway; and

2. a newly constructed stormwater pipe (the Pit)

Reason: These works were undertaken without obtaining the necessary development consent.”

  1. Random opposes the imposition of this condition, and relies on the decision of Lismore City Council v Dajoco Investments Pty Ltd [2021] NSWLEC 59, in which Duggan J made the following observation in circumstances where issues concerning structural adequacy were dealt with (at [90]):

“The issues to which a Building Information Certificate relate have all been the subject of evidence and consideration in these proceedings such that the requirement to obtain certification would be doing no more than requiring form rather than substance.”

  1. The Council points out that where unauthorised works have occurred, a development application for use of the structures generally goes “hand in hand” with an application for a building information certificate. However, the Council also acknowledges that, based on the evidence in these proceedings, there is detail concerning the pipe and pit construction and evidence that they are fit for purpose.

  2. The observations made by Duggan J in Lismore City Council v Dajoco Investments Pty Ltd apply equally in the circumstances of this case. There is no purpose served by imposing a requirement to obtain a Building Information certificate as a condition of consent. There is adequate evidence before the Court on the capacity of the pipe and pit, their location, the installation and their condition to satisfy the Court that there are no issues with those structures remaining, and the expert evidence is that the stormwater design, inclusive of those pipes, is adequate. There is no outstanding detail required that would make obtaining a Building Information Certificate necessary as a condition of development consent, and such a requirement “would be doing no more than requiring form rather than substance”, to use the words of Duggan J. Of course, if Random chooses to obtain a building information certificate, the absence of a condition of consent requiring the same does not prevent that from occurring.

  3. The condition of consent requiring the building information certificate should therefore be deleted.

Orders and directions

  1. It is appropriate for the Court to make orders allowing the amendments to the development application, and directions for the provision of final conditions of consent, before orders are made allowing the appeal and granting development consent.

  2. The Court orders that:

  1. The Court, exercising under s 39(2) of the Land and Environment Court Act 1979 the function of Ku-ring-gai Council as the relevant consent authority under s 38 of the Environmental Planning and Assessment Regulation 2021, approves the amendment to the development application DA0466/22 to include:

  1. The Acoustic Report prepared by Norrebro Design dated 30 May 2023;

  2. The BASIX certificate number 1785787M dated 3 March 2025;

  3. The Accessibility Report prepared by Morris Goding Access Consulting dated 5 February 2025; and

  4. The works described in points (1) and (2) of paragraph 6.7 of the Arboricultural Statement by Axiom Arbor dated February 2025.

  1. The parties provide agreed conditions of consent that reflect the findings of the Court by 24 April 2025.

  2. Exhibits A, B, 11 and 12 are retained, and the remaining exhibits are returned.

  3. The appeal is listed at 9.15am on 30 April 2025 for final disposal of the proceedings.

……………………….

J Gray

Commissioner of the Court

**********

Amendments

15 April 2025 - Technical errors in uploading.

Decision last updated: 15 April 2025

Actions
Download as PDF Download as Word Document
Cases Citing This Decision

1

Random Primer Pty Ltd v Ku-ring-gai Council (No 2) [2025] NSWLEC 1289
Cases Cited

4

Statutory Material Cited

9

Lismore City Council v Dajoco Investments Pty Ltd [2021] NSWLEC 59
Owners Corporation Strata Plan 533 v Random Primer Pty Ltd [2025] NSWCA 8
Rainbowforce Pty Ltd v Skyton Holdings Pty Ltd [2010] NSWLEC 2